LONDON: EMILY FAITHFULL, PRINTER AND PUBLISHER IN ORDINARY TO HER MAJESTY, VICTORIA PRESS, 83A FARRINGDON STREET, E.C. INDEX TO VOL. XIX. OF THE Law Magazine and Law Review. A Legal Triptych.-Plunket, Eldon, and Romilly, 43. A Digest of Moohummudan Law, 265. Events of the Quarter, 177, 365. Foss's Judges of England, 76. Historical Observations on the Respective Functions of the Law and Lawyers in British Burmah, 320. Law Considered as a Formal System, 243. On Criminal Responsibility, 126. On the Report of the Patent Law Commissioners, 139. The Law of Marriage and Divorce in America and England, 58. The Bar Scheme for the Amendment of the Present System of Law Reporting, 85. The Venue for Trials, Civil and Criminal, 207. The Law of the Drama, 220. The Royal Commission on the Laws of Marriage, 303. THE Law Magazine and Law Review: OR, QUARTERLY JOURNAL OF JURISPRUDENCE. No. XXXVII. ART. I.-HISTORICAL OBSERVATIONS ON THE RESPECTIVE FUNCTIONS OF THE JUDGE AND THE JURY. By M. S. O. IN N all cases of trial by jury, questions of fact are, as a general rule, determined by the jury; questions of law are always determined by the judge or by the court. The application of legal principles depends upon facts, for ex facto jus oritur; and the facts must be ascertained before any judgment of the court can be pronounced upon them. Facts are ever varying and shifting, but the rules of law applicable to them should be fixed and certain, and there seems to be a peculiar fitness in the arrangement, that the former should be submitted to a changing tribunal, but one at the same time essentially practical in its character, while the law should be administered by a permanent body devoted to its study and its application upon fixed and scientific principles. It is of very great importance to preserve this distinction between the respective functions of the judge and of the jury, and for this purpose clearly to draw the line between questions of fact and questions of law. If the judge assumes the decision of matters VOL. XIX.-NO. XXXVII. B of fact, he practically abolishes trial by jury; if the jury take upon themselves to determine the law, they involve it in uncertainty and confusion. Lord Mansfield has therefore clearly stated that the fundamental definition of trial by jury depends upon the maxim ad questionem juris non respondent juratores, ad questionem facti non respondent judices.* This maxim, however, like other principles of our common law, has had some difficulty in maintaining its ground; sometimes it has been disputed, sometimes departed from in ignorance, and often deliberately violated. In former times the rights of juries were not only interfered with during the course of the inquiry before them, but they were also liable to punishment for their verdict; and in addition to the process of attaint, which was established by law for this purpose, they were subject to fines and impositions under a power first usurped by the Star Chamber, and afterwards exercised by the common law judges. The writ of attaint has been justly characterised as one of the most barbarous and extraordinary modes of impeaching a verdict that could have entered into the imagination of man to devise. It was executed before a jury of twenty-four, and if they found that the first jury had given a wrong verdict, the attainted jury were liable to the following judgment :—That they should lose their liberam legem, and become for ever infamous; that they should forfeit their goods and chattels; that their lands and tenements should be seised into the hands of the king; that their wives and children should be cast out of doors; their houses razed and thrown down; their trees rooted up; their meadows ploughed; and their bodies cast into gaol. The unsuccessful party in the action was also The common R. v. Dean of St. Asaph. How. Sta. Tr., Vol. xxi, 1,039. John Wm. Smith, Action at Law, 147 (5th ed.). Reeves' "History of the English Law," Vol. II., p. 270. law severity of the punishment was commuted into perpetual infamy and pecuniary penalties by 11 Hen. VII., c. 24, and succeeding statutes. The last instance of an attaint found in the Reports occurs in the reign of Elizabeth (Cro. Eliz., 309), and it was formally abolished by statute 6 Geo. IV., c. 60, which provides for the punishment of corrupt jurors. |